Alejandro Romero, on his own behalf v. Watkins

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRO ROMERO, on his own
behalf and on behalf of all other
persons similarly situated,
Plaintiff-Appellant,
v.
W ATKINS AND SHEPARD TRUCKING ,
I NC., a Montana corporation;
SCHNEIDER NATIONAL C ARRIERS ,
I NC., a Nevada corporation,
Defendants-Appellees.
No. 20-55768
D.C. No.
5:19-cv-02158-
PSG-KK
OPINION
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, Chief District Judge, Presiding
Argued and Submitted July 6, 2021
Pasadena, California
Filed August 19, 2021

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2 ROMERO V . W ATKINS & SHEPARD TRUCKING
Before: D. Michael Fisher,* Paul J. Watford, and
Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Fisher
SUMMARY**
Arbitration
In a case in which Alejandro Romero filed a putative
class action suit claiming Watkins & Shepard Trucking did
not give him and other ex-employees advance notice of
termination as the federal and California WARN acts
require, and in which the district court granted Watkins’s
motion to compel individual arbitration of Romero’s claims,
the panel affirmed the district court’s ruling that the Federal
Arbitration Act (FAA) does not apply to a stand-alone
binding arbitration agreement in which Romero waived his
right to bring a class action.
The panel held that the district court correctly concluded
that Romero, a truck driver who did not himself cross state
lines but delivered goods that had once crossed state lines,
fell within FAA § 1’s exemption for transportation workers
engaged in interstate commerce. The panel held that the
district court also correctly ruled that the exemption cannot
be waived by private contract.
* The Honorable D. Michael Fisher, United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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ROMERO V . W ATKINS & SHEPARD TRUCKING 3
The panel affirmed on the remainder of issues in a
concurrently filed memorandum disposition.
COUNSEL
Eric A. Panitz (argued), Panitz Law Group APC, Cerritos,
California, for Plaintiff-Appellant.
Matthew A. Fitzgerald (argued), McGuireWoods LLP,
Richmond, Virginia; Matthew C. Kane, Sabrina A. Beldner,
and Amy E. Beverlin, McGuireWoods LLP, Los Angeles,
California; for Defendants-Appellees.
OPINION
D.M. FISHER, Circuit Judge:
Plaintiff-appellant Alejandro Romero was laid off by his
employer, Watkins & Shepard Trucking. He filed a putative
class action suit, claiming Watkins did not give him and
other ex-employees advance notice as the federal and
California WARN Acts require. Romero, however, had
agreed to a binding arbitration agreement, which waived his
right to bring a class action. Watkins moved to compel
individual arbitration of Romero’s claims. The district court
granted the motion and Romero now appeals. In this opinion,
we address just one issue. We affirm the district court’s
ruling that the Federal Arbitration Act’s (“FAA”) § 1
exemption of employment contracts for transportation
workers applies and cannot be waived by private contract. In
a memorandum disposition filed concurrently with this
opinion, we affirm on the remainder of the issues.

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4 ROMERO V . W ATKINS & SHEPARD TRUCKING
BACKGROUND
I. Factual History
Romero was a delivery truck driver employed by
Watkins & Shepard Trucking and its parent, Schneider
National Carriers, Inc. (collectively, “Watkins”) from 1997
to 2019. Watkins operated an interstate trucking business,
and Romero’s job was to deliver furniture and carpet to retail
stores in California. The product often originated from
outside of the state, but Romero made deliveries only within
California.
During the course of his employment, Romero, from
time to time, logged in to an online portal to complete
paperwork and trainings. To log in, the system required a
unique employee identification number and password.
According to the system’s data log, on April 19, 2019,
Romero’s unique user account completed a set of “Associate
Acknowledgements,” through which he clicked “I Agree,”
signifying that he read and agreed to the Schneider
Mediation & Arbitration Policy (the “Arbitration Policy”).
The Arbitration Policy is a stand-alone agreement, which
requires that “all employment-related disputes” be resolved
through individual arbitration. By assenting to it, an
employee waives any right to bring or participate in a class
action.
The Arbitration Policy also contains a “Governing Law”
section. It states that the agreement is “expressly subject to
and governed by the Federal Arbitration Act,” and purports
to “waive the application or enforcement of any provision of
the FAA which would otherwise exclude [the agreement]
from its coverage.” However, “in the event a court of
competent jurisdiction holds or decides that this [agreement]
and/or its Waiver Provisions are not subject to and governed

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ROMERO V . W ATKINS & SHEPARD TRUCKING 5
by the FAA, then the laws of the State of Nevada . . . will be
the applicable state law . . . without regard to or application
of any conflict of laws principles.”
The Arbitration Policy was not a condition of
employment. Employees could opt out of the mandatory
arbitration clause, the choice of law provision, or both, by
providing written notice to the company within 30 days.
Romero did not opt out.
In August 2019, Watkins announced it would cease
operations and informed Romero that he, among other
employees, would be laid off. Romero was terminated on
August 23, 2019.
II. Procedural History
In September 2019, Romero filed a putative class action
against Watkins in the San Bernardino Superior Court,
asserting claims under the California WARN Act, Cal. Labor
Code § 1401, and the federal WARN Act, 29 U.S.C. § 2101
et seq., which require advance notice to be given to
employees before being laid off. He sought to represent both
a California and a nationwide class of similarly situated ex-
Watkins employees who were terminated in August 2019.
Watkins removed the case to federal court and then
moved to compel arbitration of Romero’s claims. The
district court granted the motion. Among other things, it
determined that the FAA did not apply to the Arbitration
Policy, because the statute exempts workers who are
engaged in interstate commerce, a provision which cannot
be waived by the terms of a private agreement. Romero
appeals. Watkins argues that we should affirm, but
challenges the district court’s reasoning that the FAA does
not apply. Watkins argues that we should affirm on the

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6 ROMERO V . W ATKINS & SHEPARD TRUCKING
alternative ground that arbitration was correctly ordered
under the FAA.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over the federal claims pursuant to
28 U.S.C. § 1291 and supplemental jurisdiction over the
state law claims under 28 U.S.C. § 1367(a) and 28 U.S.C.
§ 1441(c). We also have jurisdiction under the Class Action
Fairness Act. 28 U.S.C. § 1332(d)(2). We review de novo the
district court’s order to compel arbitration and the legal
conclusions it made in support of that ruling. Casa del Caffe
Vergnano S.P.A. v. ItalFlavors, LLC, 816 F.3d 1208, 1211
(9th Cir. 2016).
ANALYSIS
In 1925, Congress enacted the Federal Arbitration Act
“to create a body of federal substantive law of arbitrability,
applicable to any arbitration agreement within the coverage
of the Act.” Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24 (1983). “The FAA reflects both a
‘liberal federal policy favoring arbitration’ and the
‘fundamental principle that arbitration is a matter of
contract.’” Kramer v. Toyota Motor Corp., 705 F.3d 1122,
1126 (9th Cir. 2013) (citations omitted).
Embracing these principles, the Arbitration Policy
selects the FAA as its governing law. However, § 1 of the
FAA exempts from the Act’s coverage all “contracts of
employment of seamen, railroad employees, or any other
class of workers engaged in foreign or interstate commerce.”
9 U.S.C. § 1; Circuit City Stores, Inc. v. Adams, 532 U.S.
105, 118–19 (2001). The district court concluded that
Romero, a truck driver who did not himself cross state lines
but delivered goods that had once crossed state lines, fell

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ROMERO V . W ATKINS & SHEPARD TRUCKING 7
within “any other class of workers engaged in interstate
commerce,” thereby sweeping his contract within the scope
of the exemption.
The district court is correct. In Rittmann v. Amazon.com,
Inc., 971 F.3d 904, 915 (9th Cir. 2020), cert. denied, 141 S.
Ct. 1374 (2021), this court held that delivery drivers “who
are engaged in the movement of goods in interstate
commerce” fall within the FAA’s transportation worker
exemption, even if the drivers themselves “do not cross state
lines.” Rittman is binding on this panel. Hart v. Massanari,
266 F.3d 1155, 1171 (9th Cir. 2001). Therefore, Romero
falls within the class of workers which § 1 excludes from the
FAA’s coverage.
Watkins attempts to distinguish the Arbitration Policy
from the arbitration agreement in Rittman. Unlike the
agreement in Rittman, the Arbitration Policy contains a
clause “waiv[ing] the application or enforcement of any
provision of the FAA which would otherwise exclude [the
Arbitration Policy] from its coverage.” Because the parties
have chosen to forgo the § 1 exemption, Watkins argues, the
FAA should govern. The district court disagreed. It held that
the Arbitration Policy’s attempted waiver of § 1 is
unenforceable. According to the district court, the FAA
affords courts the power to enforce arbitration agreements,
but not when they involve transportation workers engaged in
interstate commerce pursuant to § 1. Section 1 acts as a limit
on the court’s power and, thus, cannot be waived.
Again, the district court is correct. In New Prime Inc. v.
Oliveira, the Supreme Court held that a district court, not an
arbitrator, must determine whether § 1’s exemption applies
in a given case. 139 S. Ct. 532, 537–38 (2019). That question
is not at issue here. However, New Prime supports our
conclusion that a waiver is not possible. The Supreme Court

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8 ROMERO V . W ATKINS & SHEPARD TRUCKING
noted that § 1 “says that ‘nothing herein’”—meaning
nothing in the FAA—“may be used to compel arbitration in
disputes involving the ‘contracts of employment’ of certain
transportation workers,” i.e. those engaged in interstate
commerce. Id. at 536 (quoting 9 U.S.C. § 1). The “nothing
herein” language indicates that § 1 restrains the very
authority of courts to send the parties to arbitration, rather
than serving as a waivable right.
Indeed, New Prime consistently describes § 1 as
providing the contours of judicial “authority” or “power.”
New Prime defines “a court’s authority under the [FAA] to
compel arbitration” as “considerable” but not
“unconditional.” Id. at 537. It “doesn’t extend to all private
contracts, no matter how emphatically they may express a
preference for arbitration,” because “antecedent statutory
provisions limit the scope of the court’s powers” to order
arbitration. Id. Section 1 is one of those provisions. When it
is applicable, it prohibits a court from staying a litigation and
ordering the parties to arbitration. Id. In line with that
reasoning, New Prime directs courts to decide for themselves
whether the exemption applies. Id. “After all, to invoke its
statutory powers . . . a court must first know whether the
contract itself falls within or beyond the boundaries of” § 1.
Id. A private agreement cannot change this. In fact, a
“private agreement may be crystal clear and require
arbitration of every question under the sun, but that does not
necessarily mean the Act authorizes a court to stay litigation
and send the parties to an arbitral forum.” Id. at 537–38.1
1 We anticipated New Prime when we ruled, eight years earlier, that
the question of whether § 1 applies cannot be delegated to an arbitrator
because “a district court has no authority to compel arbitration . . . where

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ROMERO V . W ATKINS & SHEPARD TRUCKING 9
Beyond this, we have previously rejected a similar
theory to the one Watkins advances. In Rittman, an employer
argued that a court may choose to “enforce [an] arbitration
provision” that selects the FAA as its governing law even if
§ 1’s exemption applies, because “the parties did not
negotiate for the FAA to apply only to make the FAA
inapplicable.” 971 F.3d at 919. The employer posited that
“the FAA’s enforcement provisions”—which are different
from, but related to, the § 1 exemption—“are a body of
substantive law that the parties are free to agree to apply, just
as they could agree to apply the substantive contract law of
a particular state that would not apply by its own force.” Id.
(internal quotation marks omitted). We disagreed, saying
that the Rittman parties could not “contract around the
FAA’s transportation worker exemption.” Id. Neither can
the parties here.
Watkins responds by noting that the FAA does not
expressly state that § 1 is nonwaivable. However, the statute
need not repeat what its language already makes clear:
“nothing herein,” including the grant of power to courts to
compel arbitration, “shall apply to contracts of employment
of . . . workers engaged in foreign or interstate commerce.”
9 U.S.C. § 1. Broad, policy-based contentions that the FAA
was designed to apply Congress’ commerce power
expansively and that § 1 is a narrow exemption do not
change what the plain text commands. Nor does the fact that
certain unrelated statutory employee and consumer rights
have been held waivable. Under § 1’s plain text, the FAA’s
transportation worker exemption cannot be waived by the
terms of a private contract. Thus, because the exemption
Section 1 exempts the underlying contract from the FAA’s provisions.”
In re Van Dusen, 654 F.3d 838, 843 (9th Cir. 2011).

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10 ROMERO V . W ATKINS & SHEPARD TRUCKING
applies here, the FAA does not govern the Arbitration
Policy.
CONCLUSION
For the foregoing reasons, the district court correctly
concluded that the FAA is not the controlling law.
Nevertheless, for the reasons stated in the memorandum
disposition filed concurrently with this opinion, the district
court correctly granted Watkins’ motion to compel
arbitration.
AFFIRMED.

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